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2011 DIGILAW 874 (GAU)

Sunil Kangaria v. State of Assam

2011-11-03

P.K.MUSAHARY

body2011
JUDGMENT P.K. Musahary, J. 1. This appeal is directed against the judgment and order dated 28.9.2007 passed by the learned Additional Sessions Judge, Fast Track Court, Biswanath Chariali in Sessions Case No 32/2006 convicting the accused appellant under Section 451/376, IPC and sentencing him to undergo for 1 (one) year and to pay a fine of Rs. 1,000/- under Section 451, IPC and further sentencing to undergo rigorous imprisonment for 7 (seven) years and to pay a fine of Rs. 1,000/- in default rigorous imprisonment for 3 (three) months under Section 376, IPC. The convict appellant has presented this appeal before this Court under Section 374(2) of the Cr.P.C., 1973. Briefly stated the prosecution story is that on 20.3.2005 at 2.30 pm one Sri Jairam Gore lodged an FIR with Jinjia Out Post alleging that on 17.3.2005 at around 6 pm while the informant and his wife was not present in their house, the appellant criminally trespassed into their house and took out his 12-year old daughter (victim) by gagging her mouth and forcibly committed rape on her in the adjacent garden (bari). The informant on arrival of his house came to know about the alleged incident and filed an ejahar which was registered under Section 451/376, IPC. The victim girl was examined medically on 19.3.2005 and her statement was recorded under Section 164, Cr PC by a Magistrate-On completion of investigation the police submitted charge-sheet and the matter was committed to the Court of Sessions, Sonitpur at Tezpur which was made over to the Additional Sessions Judge, Fast Track Court, Biswanath Chariali for disposal. On consideration of the materials collected by the Police, the learned trial Court framed charge under Section376/451, IPC. On being read over and explained, the appellant pleaded not guilty and demanded trial. The prosecution examined as many as 10 witnesses to establish the case while the defence examined only one witness. The learned trial Court on the basis of the materials and evidence on record and also upon hearing the learned counsel for the parties passed the impugned judgment and order convicting and sentencing the appellant as indicated above. 2. Mr. The prosecution examined as many as 10 witnesses to establish the case while the defence examined only one witness. The learned trial Court on the basis of the materials and evidence on record and also upon hearing the learned counsel for the parties passed the impugned judgment and order convicting and sentencing the appellant as indicated above. 2. Mr. T.J. Mahanta, learned counsel for the appellant submits that evidence of medical officer, P.W. 5 clearly indicates that there is no case of forcible rape on the victim inasmuch as proof/evidence of penetration is absent and there was no mark of violence on the person of the victim girl. Moreover, according to him, the victim girl did not resist the alleged rape committed by the appellant. Under such premises, he submits that the appellant can be convicted under Section354, IPC and sentenced to undergo imprisonment for 2 years. In support of his submissions learned counsel for the appellants would refer to decision rendered by this Court in Pallab Das v. State of Tripura, reported in 2011 (1) GLT 85; Alauddin Ali (Md.) v. State of Assam, 2010 (3) GLT 821; Diganta Mazumdar v. State of Assam, reported in 2010 (1) GLT 731; Bishnu Gupta v. State of Assam, reported 2005 (2) GLT 157 and also the decision of the Apex Court rendered in Koppula Venkat Rao v. State of A.P., reported in (2004) 3 SCC 602 . 3. Mr. B.B. Gogoi, learned Addl. Public Prosecutor, per contra submits that prosecution has been able to make out the case beyond reasonable doubt that the victim was forcibly raped and the learned trial Court rightly convicted and sentenced the appellant under the aforesaid sections of the IPC which needs no interference at all. In a case of rape direct ocular evidence is hardly available. 4. The Court is dependent on the evidence of the prosecutrix and the medical evidence for coming to a conclusion. The Court is required to appreciate the medical evidence on record to find corroboration or to testify the veracity of the evidence of the victim girl. First of all let me have a look at the oral evidence of the victim girl who was examined as P.W. 6. The Court is required to appreciate the medical evidence on record to find corroboration or to testify the veracity of the evidence of the victim girl. First of all let me have a look at the oral evidence of the victim girl who was examined as P.W. 6. As per her evidence, the accused came to the house of the victim and forcibly took her out by pulling towards the back side of the house where he laid her down in the nearby bushes and committed rape. After committing rape he left the scene immediately. In her cross-examination she stated that she was gagged with a piece of cloth by one hand and pulled by another hand. In cross- examination she denied the suggestion that she did not make attempt to escape from the grip of the accused. She also denied the suggestion that the appellant did not commit rape on her. 5. The medical officer, Dr. (Mrs.) Dulumoni Saikia was examined as P.W. 5. She testified that on police requisition she examined the victim girl medically on 19.3.2006. She proved the medical report, Ext. 5 and her signature Ext. 5 (1). The relevant portion of the medical report Ext. 5 is reproduced hereunder: "Name & add" Anju Gore D/o Sri Jayram Gore, Gharamari, Behali Dt & time 19.3.06 at 3.10 PM Place of exmn. 100 Beded Civil Hosp. Bichariali Examination finding General examn-Built Moderate Breast-Moderately developed, (small) pubic-hair-absent Plv. Exmn. With due consult, plvegiral exmn. Dose, Tenderness tv. Clotted blood stained around the genital organ. 1 finger pierce. M Examination of urinal swab Negative For determination of age Adviced Exray of both writ, (2) both elbow (3) both pelvis. Report enclosed to X ray plats. Remarks :--Suspected sign of intercourse Age of the victim is above 12 (twelve) years & Below 15 (fifteen) yrs. Sd/-Illegible Dr. (Mrs.) Dulumoni Saikia 29.6.2005 As per medical report and opinion of the medical officer, the age of the victim girl was above 12 years and below 15 years. She was not major at the time of alleged occurrence. The age of the victim girl has not been disputed by the defence. It can, therefore, be accepted that the victim was minor at the time of alleged incident. If the victim was a minor girl at the relevant point of time, the question of consent would not arise. She was not major at the time of alleged occurrence. The age of the victim girl has not been disputed by the defence. It can, therefore, be accepted that the victim was minor at the time of alleged incident. If the victim was a minor girl at the relevant point of time, the question of consent would not arise. Of course, the defence, as it appears, is not trying to take any advantage on the ground of age of the girl. What is found from the submission of the learned counsel for the appellant is that story of forcible rape should not have been accepted by the Court. However the learned counsel for the appellant fairly submits that Court may accept the story of attempt to commit rape by the appellant on the victim on the basis of the medical report and the evidence given by the medical officer, P.W. 5. 6. The settled position of the law is that penetration of male organ/genital is the sine qua non in the rape case. The penetration does not mean full penetration. In medico-legal sense partial penetration of penis touching labia majora or the vulva or pudenda with or without emission of semen or even attempt at penetration is quite sufficient for the purpose of the law. The victim girl in her evidence did not state as to whether there was penetration or an attempt on the part of the appellant to penetrate his penis. What she said was that she was forcibly raped by the appellant. A minor girl may not be able to say whether there was penetration or not for which she could not properly make statement before the learned trial Court. The medical officer in her report recorded tenderness on the private part of the victim girl and clotted blood stain around the genital organ which admits one finger. The medical officer was not sure but she suspected that there was sign of intercourse, The opinion of the doctor was not very positive. Her opinion may be taken in the negative also. Even if a positive opinion is given by the medical officer it may be accepted or rejected by the Court. As discussed earlier, the victim girl did not utter a single word regarding penetration which is necessary for the purpose of establishing the case of rape. 7. Her opinion may be taken in the negative also. Even if a positive opinion is given by the medical officer it may be accepted or rejected by the Court. As discussed earlier, the victim girl did not utter a single word regarding penetration which is necessary for the purpose of establishing the case of rape. 7. The prosecution did not send the blood stained wearing apparels for FSL examination to establish that the seized wearing apparels contained human blood and the said blood group tallies with the blood (group of the victim. The recovery and seizure of blood stained wearing apparels is also not found proved inasmuch as the I.O. (P.W. 10), in his evidence stated that he never seized wearing apparels of the victim girl which were stained with blood. But at the same time, the said I.O. has proved the seizure list Ext. 4 and his signature Ext. 4(2). Surprisingly, the defence also did not put any suggestion to the I.O. that he never recovered and seized any blood stained wearing apparel during investigation. On consideration of the entire evidence on record particularly the evidence of the prosecutrix and the medical officer, I am of the considered view that the prosecution is not successful in establishing the charge of offence under Section 376, IPC inasmuch as it could not prove beyond reasonable doubt that there was penetration of penis as required under the law and that the victim girl was raped forcibly. The evidence is otherwise clear that the accused appellant exploited the situation of the absence of victim's parents and tried to commit rape on her which was resisted and due to which she received injuries on her private part resulting into clotting of blood and that may be the reason as to how, the medical officer entertained a suspicion while recording the report that it was a suspected case of rape. In my considered view, such suspicion or presumption cannot be accepted as a piece of legal evidence and it can not be a basis of conviction. The charge of rape under Section 376, IPC having not been established or proved beyond reasonable doubt, the conviction and sentence under Section 376, IPC is liable to be set aside and quashed. It is ordered accordingly. The charge of rape under Section 376, IPC having not been established or proved beyond reasonable doubt, the conviction and sentence under Section 376, IPC is liable to be set aside and quashed. It is ordered accordingly. However, in my considered View, a case of attempt to commit rape is found established on the basis of the evidence on record for which the accused appellant is liable to be convicted under Section 511, IPC. The appellant stands convicted under Section 511, IPC. The ends of justice, in my considered view, would be served if the appellant is sentenced to a period already undergone. It is so ordered. As per record the accused appellant has been serving sentence since 28.9.2007 and he has been in jail for more than four years. The appeal is partly allowed with modification in the conviction and sentence as indicated above. The appellant be set at liberty forthwith if his further detention is not required in connection with any other case. Send down the LCR forthwith.